Gabriella Citroni, Università di Milano-Bicocca

In his post on the enforced disappearance, torture, and arbitrary killing of Giulio Regeni, Luca Pasquet quoted the annual report of the United Nations Working Group on Enforced or Involuntary Disappearances (WGEID), where concern is expressed in relation to what “seems to be a recent pattern of short-term disappearances” in Egypt (UN Doc. A/HRC/30/38, para. 67, emphasis added). However, the phenomenon of “short-term disappearances” is not unique to Egypt and has been the source of concern for international human rights mechanisms at least over the past ten years. In the above-mentioned Annual Report, the WGEID informs that from 17 May 2014 to 15 May 2015 it observed a pattern of “short-term” enforced disappearances being used in a number of countries, and expressed its deep concern in this regard (para. 102). In the same report explicit reference is made to the practice of short-term enforced disappearances in Bahrain (para. 59). In the Annual Report for 2014 (UN Doc. A/HRC/27/49, para. 117), the WGEID observed a pattern of short-term enforced disappearances in Bahrain and the United Arab Emirates). Moreover, the WGEID stressed that “there is no time limit, no matter how short, for an enforced disappearance to occur and that accurate information on the detention of any person deprived of liberty and their place of detention shall be made promptly available to their family members” (UN Doc. A/HRC/30/38, para. 102).

The clarification provided by the WGEID must be read in the context of an ongoing debate on to the existence of a so-called “temporal element” in enforced disappearance (Ott, pp. 185-186; and Citroni). Determining whether a specific conduct can be qualified as enforced disappearance is instrumental to the adoption of adequate measures to eradicate this scourge. Offences such as abduction, murder, torture, or arbitrary arrest may be linked or closely related to enforced disappearance, but they do not reflect the complexity and nature of such crime, as they do not encompass all its core elements, eventually making it impossible to guarantee effective prevention and to ensure accountability.

In international law, enforced disappearance is defined in three human rights law instruments, namely the United Nations Declaration on the Protection of All Persons from Enforced Disappearance (“the 1992 Declaration”, preamble); the Inter-American Convention on Forced Disappearance of Persons (Art. II); and the International Convention for the Protection of All Persons from Enforced Disappearance (“the 2006 Convention”, Art. 2). Further, the Rome Statute of the International Criminal Court (“the ICC Statute”) includes enforced disappearance among crimes against humanity when committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack (Art. 7.1.i).

All the existing definitions establish three elements of the crime, i.e. deprivation of liberty against the will of the person concerned; involvement of governmental officials, at least indirectly by tolerance, support or acquiescence; and refusal to disclose the fate and whereabouts of the person concerned.

The ICC Statute differs in two aspects. Firstly, it encompasses among the potential perpetrators of the crime political organisations or persons or groups of persons acting with the authorization, support or acquiescence of such political organisations. Secondly, it adds a constitutive element of dolus specialis, by requiring that the perpetrator acted with the intention of removing the victim from the protection of the law for a prolonged period of time. The differences in the definition may be partially explained by the fact that the ICC Statute is a treaty of international criminal law and, as such, aims at establishing individual responsibility, while the three other legal instruments are of international human rights law, and deal with State responsibility. Nevertheless, the fact remains that the additional element included in the definition of the ICC Statute only contributes to bring confusion and has been met with harsh criticism by both practitioners and scholars.

In the three instruments of international human rights law, the “placement of the victim outside the protection of the law” is conceived as an inherent consequence of the offence. The WGEID has held that, provided that it is more conducive to the protection from enforced disappearance, this is the correct interpretation of the phrase at stake (Study on Best Practices on Enforced Disappearance in Domestic Criminal Legislation of 2010, paras. 30-32). It has also clarified that it «admits cases of enforced disappearance without requiring that the information whereby a case is reported by a source should demonstrate, or even presume, the intention of the perpetrator to place the victim outside the protection of the law» (General Comment on the Definition of Enforced Disappearance, para. 5). A similar interpretation has been adopted by the United Nations Committee on Enforced Disappearances (CED) that recommended adequately taking this into account also when codifying the offence at the domestic level (Concluding Observations on Paraguay, paras. 13-14). The Inter-American Court of Human Rights follows the same approach (Judgment of 21 December 2009 on the case Chitay Nech and others v. Guatemala, para. 99).

On the contrary, qualifying the placement of the victim outside the protection of the law as a further element and adding a temporal requirement, in the sense that this must be for a “prolonged period of time”, creates an extremely heavy – and potentially unattainable – burden of proof. In particular, the formula “for a prolonged period of time” is extremely vague and lends itself to misinterpretation, as it remains unclear how long such period should be. A narrow reading would lead to denying the very existence of the practice of short-term enforced disappearances, hence leaving without protection a significant number of persons.

An instance of the interpretive challenges posed by the alleged existence of a temporal element can be found in the Views issued on 21 March 2012 by the United Nations Human Rights Committee (HRC) on the case Aboufaied v. Libya. The communication referred to the enforced disappearance of two brothers, Mr. Idriss Aboufaied and Mr. Juma Aboufaied. The former, a known political opponent of Colonel Khaddafi was arrested a first time by agents of the Internal Security Agency on 5 November 2006. His family could not obtain information on his fate and whereabouts until 29 December 2006 (i.e. 54 days later), when he was released, in poor health conditions. He was then arrested on a second occasion on 16 February 2007 by a group of armed men. First, he was kept in a detention facility in Tripoli for two months and then he was transferred to the Ain-Zara prison, where he was subjected to torture for five months. His family learned about his whereabouts in April 2007. Immediately after Mr. Idriss Aboufaied’s second arrest, his brother Juma was also captured by State agents. His family saw him again two days later and then had no news about his fate and whereabouts until 27 May 2008, when he was released.

In the communication, both instances were referred to as enforced disappearances (Mr. Idriss Aboufaied for 54 days in 2006, and for over two months in 2007; and Mr. Juma Aboufaied for almost one year and a half between 2007 and 2008), and the authors requested the HRC to declare several provisions of the International Covenant on Civil and Political Rights (ICCPR) violated.

The HRC indeed qualified both cases as enforced disappearance and held Libya responsible for the breach of its obligations pursuant to the ICCPR. However, not all the members of the HRC supported the qualification of the concerned crimes as enforced disappearances. According to some of the experts, to qualify an act as enforced disappearance and to find a violation of Art. 16 of the ICCPR, a temporal element would be necessary. In his concurring individual opinion, Sir Nigel Rodley declared that «while concurring with some hesitation in the substantive findings of the Committee, I have misgivings about the Committee’s unexplained treatment of these cases or at least the case of Idriss Aboufaied explicitly as ‘enforced disappearance’». He added that «those who are experienced in working with the grotesque and unconscionable practice of enforced disappearance are familiar with the need to distinguish an unacknowledged detention perhaps that exceeds national or international time limits and thus constitutes at least arbitrary detention, from the horrible reality of enforced disappearance. This distinction would appear to imply a temporal element in the notion of enforced disappearance. Indeed, there is a risk of trivializing the notion, if it is held to cover any secret detention (by which I understand neither the detention to be acknowledged nor the whereabouts disclosed) for however short period». The expert argued that the HRC «should require more than the mere assertion […] that a person falls into the category without a significant temporal element. Not every secret detention, even for as much as two months, as was inflicted on Idriss Aboufaied, would necessarily fall to be treated as an enforced disappearance, as there would not on that basis alone be sufficient evidence of deprivation of protection of the law». Sir Nigel Rodley concluded his opinion cautioning: «about relatively brief secret detention, arbitrary and torturous though they be, being treated as authentic enforced disappearances». Mr. Walter Kälin attached a dissenting opinion to the Views and echoed the doubts expressed by his colleague.

If, according to the two experts, two months would not amount to a “significant temporal element” and they are unsure whether 15 months would actually meet this requirement, no sound hint is given to determine with precision what would reach the “significant” or “prolonged” threshold.

The distinction between “relatively brief secret detention” and “authentic enforced disappearances” did not persuade the majority of the HRC and does not seem to adequately reflect existing practices, such as short-term enforced disappearances, as well as international case law on the matter. In this regard, a joint study of several UN Special Procedures on global practices in relation to secret detention in the context of countering terrorism highlights that «every instance of secret detention also amounts to a case of enforced disappearance» (para. 28). The joint study provides a comprehensive analysis of the development over the years and across the globe of the use of enforced disappearance, including short-term enforced disappearance, as a counter-terrorism technique and as a tool for repression. Recognising the existence of the practice and its features is pivotal to providing an effective response.

As pointed out by Mr. Fabián Salvioli in a partly dissenting opinion attached to the Views on the Aboufaied case, introducing a time dimension as an additional element would not serve the purpose, but rather have the effect of weakening the concept of enforced disappearance.

While the debate on the existence of the temporal element continues within the HRC (see, e.g., the individual opinions attached to the Views of 3 July 2015 on the Tharu and others v. Nepal case), other international human rights mechanisms have taken a clear stand in the sense that the actual duration of the deprivation of liberty (followed by the refusal to acknowledge such deprivation and concealment of the fate and whereabouts of the victim) does not play any role in the qualification of the crime as enforced disappearance.

In its judgment on the El-Masri v. The Former Yugoslav Republic of Macedonia case, the European Court of Human Rights (ECtHR) found that holding Mr. Khaled El-Masri, in the context of the so-called “extra-ordinary renditions programme”, in a cell in Afghanistan for over four months without any contact with the outside world and without disclosing his fate and whereabouts to his family or legal representatives, amounted to an enforced disappearance. In the words of the ECtHR, «[…] the Court considers that the applicant’s abduction and detention amounted to ‘enforced disappearance’ as defined in international law. The applicant’s ‘enforced disappearance’, although temporary, was characterized by an ongoing situation of uncertainty and unaccountability, which extended through the entire period of his captivity. In this connection the Court would point out that in the case of a series of wrongful acts or omissions, the breach extends over the entire period starting with the first of the acts and continuing for as long as the acts or omissions are repeated and remain at variance with the international obligation concerned» (para. 240).

In its Views of 11 March 2016 on the Yrusta v. Argentina case, the CED held that even seven days of deprivation of liberty of a person, followed by the concealment of his fate and whereabouts by State agents, amount to enforced disappearance. In the specific case, in January 2013 Mr. Yrusta was transferred from a detention facility to another within Argentina. However, during seven days (between 16 and 21 January 2013), his family could not obtain any information from the competent authorities on his fate and whereabouts. The CED held that an enforced disappearance commences with the deprivation of liberty of the victim in whatever form, including the transfer of a detainee from one facility to another. To be qualified as an enforced disappearance, the deprivation of liberty must be followed by the refusal to acknowledge the deprivation of liberty itself or by the concealment of the fate and whereabouts of the disappeared, hence placing him or her outside the protection of the law. The CED firmly stressed that the duration of the deprivation of liberty or of the concealment of the fate or whereabouts of the victim is irrelevant for the qualification of the offence as an enforced disappearance (para. 10.3) and held that there was a violation, among others, of Arts. 1 and 2 of the 2006 Convention. Notably, a few weeks after the disclosure of his whereabouts in the new detention centre, Mr. Yrusta was found dead. Authorities considered it a suicide, but relatives called for a thorough investigation to establish the causes of the death. The CED requested Argentina to carry out a thorough investigation not limited to the death of Mr. Yrusta, but encompassing also his enforced disappearance from 16 to 21 January 2013, with the aim to unveil the truth about the circumstances of the enforced disappearance and to identify and adequately sanction all those responsible for this crime (para. 12.b).

The judgment of the ECtHR and the Views of the CED fully capture the nature of the phenomenon and make it difficult to argue that short-term enforced disappearances do not exist. The alleged distinction between “relatively brief secret detentions” and “authentic enforced disappearances” appears fictitious: whenever authorities deny that a deprivation of liberty took place and conceal the fate and whereabouts of the person, irrespective of the duration of such situation, the events must be regarded as an enforced disappearance.

As aptly noted by Mr. Olivier de Frouville in his concurring opinion attached to the Views of the HRC in the Tharu and others case «[…] the practice of enforced disappearance has evolved since the turn of the century. Nowadays, short-term disappearances have proliferated, especially in the context of counter-terrorism […]. In the 1970s, 1980s and even 1990s, only a few people ever survived enforced disappearance. Most of the victims, once placed in secret detention, died under torture or were summarily executed. A few were lucky enough to come out of it alive, after a few days or a few weeks of detention, especially if their cases had been made public soon enough by non-governmental organizations or United Nations protection bodies like the Working Group. A few others, in some countries, would ‘reappear’ years or even decades later, completely shattered by the experience of confinement and the total denial of their rights» (para. 4 of the individual opinion).

The expert highlighted that «this type of enforced disappearance is still practised in some contexts […]. To this form of enforced disappearance, however, has been added the practice whereby a person is made to disappear for the space of a few days or for several weeks, during which time he or she is maintained in secret detention outside any legal framework and tortured, before being handed over to the police and then to the courts, often with a falsified arrest warrant in an attempt to hide the real date of arrest. The person is then charged and tried on the basis of ‘confessions’ obtained in fact under torture during the period of disappearance. Have these practices been created in an effort to circumvent the time condition laid down in article 7 of the Rome Statute and the particularly degrading attribute of ‘crime against humanity’? There is no way of knowing. But that is not essentially what matters. What really matters here is the recognition that in some cases, as in the more classic cases, the person is denied the right to recognition as a person before the law from the outset of his or her deprivation of liberty. The act of causing the person to disappear and to be placed in secret detention outside any legal framework is a way of signifying to the person’s family and acquaintances that the disappeared person is no longer a person before the law, that he or she ceases to legally exist and is no longer entitled to the protection of his or her country’s laws or of international law — and that, in those conditions, the person’s torturers can dispose of him or her exactly as they please» (para. 5 of the individual opinion).

The essence of short-term enforced disappearances as a tool for repression is perfectly captured by the description provided by Mr. de Frouville. The WGEID described these cases as situations where «victims are placed in secret detention or unknown locations, outside the protection of the law, before being released weeks or months later, sometimes after having been tortured and without having been brought in front of a judge or other civil authority. This very worrisome practice, whether it is used to counter terrorism, to fight organized crime or suppress legitimate civil strife demanding democracy, freedom of expression or religion, should be considered as an enforced disappearance and as such adequately investigated, prosecuted and punished» (Annual Report for 2011, para. 50).

The WGEID clarified that «when the dead body of the victim is found mutilated or with clear signs of having been tortured or with the arms or legs tied, those circumstances clearly show that the detention was not immediately followed by an execution, but that the deprivation of liberty had some duration, even of at least a few hours or days. A situation of such nature, not only constitutes a violation to the right not to be disappeared, but also to the right not to be subjected to torture, to the right to recognition as a person before the law and to the right to life, as provided under article 1.2 of the Declaration» (General Comment on the Definition of Enforced Disappearance, para. 9).

Hence, where the victim has already been found dead, the case falls within the definition of enforced disappearance: «as long as such detention or deprivation of liberty was carried out by governmental agents of whatever branch or level, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, and, subsequent to the detention, or even after the execution was carried out, State officials refuse to disclose the fate or whereabouts of the persons concerned or refuse to acknowledge the act having been perpetrated at all» (Ibid., para. 10). Were the WGEID to receive reports of cases of such nature, it would not register them under its regular procedure, as they would be clarified ab initio, in the sense that the fate and whereabouts of the victim are known. Rather, it would transmit them as “general allegations” (WGEID’s Procedures) to the government concerned, inviting it to comment on the measures that should be taken under the 1992 Declaration to investigate, bring the perpetrators to justice, satisfy the right to adequate compensation and redress, as well as regarding measures to stop and prevent enforced disappearances.

Calling an abhorrent practice by its real name is the first necessary step to tackle it. This is why it is so important to recognise that, besides torture and arbitrary killing, Giulio Regeni, as hundreds of other people in Egypt, has also been subjected to an enforced disappearance, no matter how short. Once this has been duly recognised, the submission of the case in the form of a general allegation to the WGEID can be envisaged.

Notably, at the domestic level, the qualification of the offence as enforced disappearance would face challenges similar to those pointed out by Gabriella Carella in her post referring to torture in terms of lack of adequate codification in the criminal legislation. Also, the possibility to exercise universal jurisdiction by Italian authorities (envisaged pursuant to Art. 9-11 of 2006 Convention, to which Italy is a State party since 8 October 2015) would be jeopardised.

While significant obstacles would certainly remain, recognition of short-term enforced disappearance as an existing practice, with a precise aim and specific characteristics, is an indispensable first step to ensure that they can no longer serve as an effective tool for repression.